Everyone has seen a hearing on TV, but very few people know the process that leads up to that hearing. 95% of family law cases get settled before they even go to trial. Family law cases can be very stressful, but knowing what’s coming next can help lessen that stress. For a few weeks, we will look at the steps of a family law case prior to a hearing.
Part 6: Mediation
During most domestic cases, you will have to go through a mediation process. Mediation is required by North Carolina statute when a complaint for equitable distribution, post separation support and alimony, or child custody is filed, or a motion for modification of custody is filed.
The state wants family situations, regardless of whether the parents are together, to be as stable and amicable as possible so that the children can grow up in healthy homes and become healthy, productive adults. To achieve this, North Carolina requires families to try to work out their problems together instead of having a hearing in front of a judge. The adversarial setting of a courtroom tends to bring out the worst in people in what is already a tense situation.
Mediation Can Help Keep Cases Out of Court
Custody and divorce trials can get ugly, with both parties making accusations and bringing up irrelevant negatives. Keeping these issues out of court prevents relationships from being destroyed by the mudslinging, especially when children are involved. Mediation also helps keep cases out of court and frees up the court’s time, an especially important consideration given the current backlogs caused by the COVID shutdowns.
While all of those are important broad considerations, your goals in mediation will be much more personal. Your mediator will be trying to work with both you and the other party to find any common ground and to create an agreement that both parties can live with. People are almost always happier with an agreement that they had a hand in creating, instead of one that they feel was forced on them by a judge. Reaching an agreement during mediation can also decrease the costs of your case and prevent the mental strain of litigation.
Don’t Feel Pressured to Reach a Settlement in Mediation
Your personal goal is to find a balance between being willing to compromise and standing up for the things that are the most important to you. You should not feel pressured to reach a settlement in mediation if you don’t feel that you have been offered a fair agreement. Sometimes the other party is unreasonable, or it is impossible for you to see eye to eye. In those situations, going forward with litigation may be the best and only way to get what you deserve.
Unfortunately, some situations aren’t appropriate for mediation. There may be a history of domestic violence or intimidation between the parties. Sometimes the financial issues involved may be far too complicated to lay out in mediation. In special circumstances like these, where mediation is unsafe or unlikely to reach a fair agreement, the courts can waive the mediation requirement.
The process of mediation starts long before you sit down with the mediator. If your case involves custody, then you will first have to take a class about healthy co-parenting. Then, there is a mediation orientation, where you will learn about the goals and format of mediation. Only when those are complete can your mediation be scheduled. The mediator will confer with both you and the other party, find out what is important to each of you, and look for solutions that will make everyone happy.
Possible Outcomes of Mediation
It is important to note that what is discussed in mediation cannot be used against you in later litigation. Two outcomes are possible in mediation: If you come to an agreement, the mediator will submit that agreement to the court, and the judge will sign off on it. If no agreement is reached, the mediator will write a letter to the court notifying them that mediation was unsuccessful. Once that letter is filed, litigation can move forward.
An agreement reached through mediation can make everyone happy and prevent toxic negativity between the parties. Approaching mediation with an open mind and a willingness to work with your mediator can save time, money, and relationships. This will benefit you in the long run, even if you don’t come to an agreement.